- (1.) These two writ petitions have been filed against the judgment and order dated 3.2.2016 passed by the State Public Services Tribunal, Lucknow (for short "the Tribunal"). Both the writ petitions have been filed against the common judgment, so they are being decided by this judgement.
(2.) The facts to the present dispute are that opposite party-Ashok Kumar Mishra was selected on the post of Assistant Engineer through U.P. Public Service Commission (for short "the UPPSC") in the Irrigation Department and joined the Irrigation Department on 19.3.1982. Subsequently, he applied again in the next advertisement, which was issued by the UPPSC in respect of Public Works Department. He appeared in the selection and ultimately, he was selected and joined on the post of Assistant Engineer in Public Works Department on 24.1.1984 and 'No Objection Certificate' was issued on 18.1.1984 in favour of opposite party-Ashok Kumar Mishra by the Irrigation Department. After joining in the Public Works Department, opposite party-Ashok Kumar Mishra continued to work on the post in question. Government issued a final seniority list on 5.8.1997 relating to the Public Works Department. The aforesaid seniority list of Assistant Engineers (Civil) appointed between the years 1959 to 1980 and prepared in the year 1995 was challenged before this Court and the matter ultimately went to the Hon'ble Supreme Court in Civil Appeal No.1647 of 1997, Keshav Dev and another Vs. State of U.P. and another, which came to be decided vide judgment and order dated 16.10.1998 with certain directions. In the light of the aforesaid directions, the State Government issued another tentative seniority list on 15.4.2004 in respect of Assistant Engineers (Civil) appointed in the Public Works Department between 1980 to 1991 i.e. prior to coming into force the U.P. Government Servants Seniority Rules, 1991 (for short "the 1991 Rules"). Objections in respect of the said tentative seniority list were required to be filed within a period of one month. In respect of the tentative seniority list dated 15.4.2004, opposite party-Ashok Kumar Mishra submitted representation on 10.5.2004 with a request for treating his substantive appointment in the cadre from 19.3.1982 in place of 24.1.1984 and the said representation was finally rejected and the final seniority list was issued on 3.9.2004 and the appointment of opposite party-Ashok Kumar Mishra was treated as substantive w.e.f. 24.1.1984. Opposite party-Ashok Kumar Mishra did not file any objection thereafter and his alleged representation dated 15.10.2004 is not traceable in the record and neither any such representation has been made according to the learned Standing Counsel as stated in the rejoinder affidavit. Opposite party-Ashok Kumar Mishra was promoted as Executive Engineer on 4.1.2008 from the date of promotion of his juniors w.e.f. 23.3.2006. Thereafter, he was promoted as Superintending Engineer w.e.f. 23.5.2012 and lastly to the post of Chief Engineer Level-II w.e.f. 31.8.2012. He continuously derived benefit of promotion from time to time on the basis of his joining in the Department on 24.1.1984 and he did not challenge the said seniority list at any point of time. He filed claim petition before the Tribunal in the year 2013 numbering 1307 of 2013 challenging the seniority list and claiming the benefit of earlier services rendered in the Irrigation Department. The Tribunal considered the case of the parties and allowed the claim petition filed by opposite party-Ashok Kumar Mishra thereby giving direction to add his earlier services rendered in the Irrigation Department and determine his seniority accordingly.
(3.) Learned Standing Counsel as well as learned counsel for the petitioner of the connected writ petition has submitted that the claim petition was time barred as the seniority list published on 3.9.2004 could not have been challenged after a lapse of nine years when the limitation provided under the U.P. Public Services Tribunal Act is one year. The representation dated 15.10.2004 alleged to have been filed by opposite party-Ashok Kumar Mishra was never received by the Government at any point of time and neither any such representation is available in the record. Reliance placed on the representation dated 19.9.2012 by opposite party-Ashok Kumar Mishra is also misconceived and in the said representation, there is no mention about the representation dated 15.10.2004, which is alleged to have been moved at earlier point of time. Learned counsel submits that even representation dated 19.9.2012 is not available in the record and neither the said representation can be placed any reliance as both the representations alleged to have been filed only with a view to gain limitation. Learned counsel submits that on the basis of said representations, which have never been received and neither they are in the record, no limitation can be gained and the claim petition was liable to be dismissed on the ground of limitation. Though a specific ground was taken before the Tribunal, but the Tribunal has failed to take into consideration the argument raised in respect of non-availability of the representations submitted by opposite party-Ashok Kumar Mishra. Learned counsel has also submitted that benefit given on the basis of the case of Vijaya Kumar Shrotriya Vs. State of U.P. and others, 1998 3 SCC 397 is altogether misconceived and the case of Vijaya Kumar Shrotriya has been rendered on the basis of the transfer of service and that too in pursuance to the decision taken by the Government to give seniority to the incumbent while working in the earlier department and this decision was taken by the Government in peculiar facts and circumstances where the person concerned was not relieved for a long period though he was selected. Learned counsel, therefore, submits that the aforesaid case has wrongly been applied and benefit of the said case is neither available nor could be given to opposite party-Ashok Kumar Mishra. Case of Vinod Kumar Sharma v. State of U. P. and another, 2001 4 SCC 675, is also on the same footing whereas in the case of R.N. Singh v. State of U.P., Writ Petition No.443 (SB) of 2008, this Court found that discriminatory treatment was given to the petitioner and therefore, gave direction to give parity with other employees, which is not the case here.;